January 9, 2009
Detailed Probation Conditions
An attorney who had failed to diligently pursue an estate and trust matter was placed on probation for three years by the Kansas Supreme Court. The attorney had also initially failed to cooperate in the disciplinary matter, but eventually submitted a detailed plan of probation that the court adopted:
"1. Limitation of Practice. The Respondent shall limit his practice to a part-time practice and shall consist of cases assigned to him by Jared Holste.
"2. Practice Supervision. The Respondent's practice will be supervised by Jared Holste. The Respondent and Mr. Holste shall prepare a monthly report to the Disciplinary Administrator's office regarding the Respondent's status on probation. The monthly report shall include a current case list which shall identify each case by name, set forth all deadlines scheduled by the court, a statement regarding whether each deadline for the month was met, and an explanation if a continuance was requested. In the event a deadline is missed, the Respondent and Mr. Holste shall immediately report the missed deadline to the Disciplinary Administrator's office.
"3. Office Procedures. The Respondent and Mr. Holste shall develop written office procedures and provide a copy of the written office procedures to the Disciplinary Administrator within 30 days of the date of this report. The written office procedures shall address internal office procedures as well as how Mr. Holste intends to monitor the Respondent's compliance with the terms and conditions of probation, specifically including the limitation of the Respondent's practice.
"4. Communication. The Respondent shall make every effort to return telephone calls within two business days of receipt.
"5. Professional Liability Insurance. The Respondent shall continue to maintain professional liability insurance.
"6. Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinary Administrator's office. If the Disciplinary Administrator's office requests any additional information, the Respondent shall timely provide such information.
"7. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.
As a former bar prosecutor, I always look at probation conditions from a viewpoint of enforceability. How do you charge a violation of provision #4? (Mike Frisch)
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From another viewpoint, a lawyer must be able to control his calendar and limit himself to that work which he is capable of completing. This agreement transfers those responsibilities to another lawyer. The implication is that this lawyer lacks the judgment necessary to limit his work. So does this lawyer actually possess the qualifications and skills to be a lawyer?
Furthermore, if the lawyer does take on too much work and fails to complete that work on time, who is responsible? The lawyer supposedly didn’t make the decisions, the other lawyer did. So which lawyer should be disciplined for subsequent violations?
As Mike correctly points out, the agreement is nothing more than a sham never intended to have any real teeth to it.
Posted by: FixedWing | Jan 9, 2009 12:30:47 PM